Opinion
906, 906A
July 10, 2003.
Orders of disposition, Family Court, New York County (Helen Sturm, J.), entered on or about October 4, 2002, which, to the extent appealed from as limited by the briefs, directed post-adoption visitation between respondent-mother and the subject children in the context of terminating respondent's parental rights to the children, upon findings of permanent neglect pursuant to Section 384-b of the Social Services Law, unanimously reversed, on the law, without costs, and the provision of the dispositional orders directing post-adoption visitation vacated.
Nancy Botwinik, for respondent-respondent.
Ronald E. Sternberg, for petitioner-appellant.
Judith Waksberg, for appellant.
Before: Tom, J.P., Saxe, Williams, Lerner, Marlow, JJ.
The Family Court erred in ordering post-adoption visitation following a termination of parental rights pursuant to Social Services Law § 384-b. This Court has explained that "[w]hile post-adoption contact is permitted in the context of a surrender agreement pursuant to Social Services Law § 383-c, it remains that `open adoption' is not a dispositional option in the context of a termination proceeding pursuant to Social Services Law § 384-b" (see Matter of Cheyanne M., 299 A.D.2d 162). As the Court of Appeals noted inMatter of Gregory B. ( 74 N.Y.2d 77, 91), "[a]lthough adoptive parents are free, at their election, to permit contacts between the adopted child and the child's biological parent," section 384-b of the Social Services Law does not authorize the courts to order post-adoption visits.
The Court in Gregory B. also emphasized that it is up to the Legislature to determine and direct which circumstances, if any, are amenable to the "open adoption" process (id.). Notably, the Legislature did so in 1990, when it enacted Social Services Law § 383-c, for the first time providing for procedures by which a parent may surrender a child conditional upon the retention of certain rights of contact or visitation. From the fact that no alteration was made to § 384-b, it must be presumed that there was no legislative intent to extend the concept of open adoption to adoptions following parental terminations pursuant to § 384-b. Accordingly, the Family Court in this matter lacked statutory authority to order post-adoption visitation.
Nor do we consider the Second Department's recent decision in Matter of Corinthian Marie S. ( 297 A.D.2d 382) to be controlling, inasmuch as that matter involved exceptional circumstances not present here.
Inasmuch as the Attorney General was not notified of this appeal pursuant to Executive Law § 71, this Court will not rule on respondent's argument that permitting open adoption under Social Services Law § 383-c, but not under Social Services Law § 384-c, is unconstitutional (see Matter of A J Produce Corp. v. Commissioner of Finance of the City of N.Y., 199 A.D.2d 99, lv denied 86 N.Y.2d 701; Matter of Tiffany B., 111 A.D.2d 168, lv denied 65 N.Y.2d 606, cert denied 474 U.S. 862).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.